Search

Issues of law and ‘lawfare’ are recurrent features of foreign policy debates in the United States. On the side, are efforts by peace activists and others to condition the behavior of all states, and especially the United States, by reference to authoritative limits on national discretion as encoded in the UN Charter, a binding treaty. In opposition to a law-oriented foreign policy for the United States are a variety of arguments that rely either directly or indirectly on a version of ‘American exceptionalism.’ Such arguments do not repudiate international law, but condition its applicability to American behavior and that of American allies, and insist on the implementation of international law in relation to the alleged unlawful conduct of adversaries (e.g. Russia involvement in eastern Ukraine)

On the other side of this discourse is the various forms of ‘lawfare’ as an instrumental use of law to achieve valued ends, positive or negative. In these roles international law can mobilize public opinion and government policy to support or oppose particular undertakings. In this limited sense it is appropriate to conceive of ‘lawfare’ as ‘soft power goepolitics’ or as a form of ‘asymmetric warfare’ waged by political actors deficient in hard power.

It was during the presidency of George W. Bush that the neocons decided that recourse to international law was a weapon of the weak that interfered with the grand strategy of the United States, especially in the Middle East. The terminology of lawfare was adopted by both advocates of reliance on international law as constraints on American (and Israeli) policy and by those who sought to denigrate invocations of international law as obstructive tactics that interfered with the protection of security in a post-9/11 world. In reaction to the Goldstone Report (2009) there was launched a notorious ‘Lawfare Project’ that viewed reliance on international law within the UN setting in a manner highly critical of Israel was a new form of ‘asymmetric warfare’ that needed to be countered to avoid the delegitimizing of Israel as a democratic sovereign state. This kind of interpretation dominated a conference at Columbia Law School, featuring the participation of the Dean, David Schizer, that denounced the Goldstone Report and human rights NGOs and was organized by a coalition of pro-Israeli organizations.

I regard lawfare as the use of the rules and procedures of law more neutrally, as instrumental uses of law to achieve or block policy outcomes. My focus is on international law, but the same dynamics apply to internal uses of law. The website, ‘LAWFARE,’ affiliated with the Washington think tank, The Brookings Institution, and bolstered by the active participation of some Harvard Law School conservative faculty, uses lawfare in this neutral, instrumental way, although its government oriented biases dominates its commentary.

There is a problematic side to international law that reflects its crafting and evolution over the centuries. International law definitely was developed to rationalize the interests and projects of the dominant political actors in the West. International law proved useful in giving a legal cover to colonial rule, unequal and imposed treaties, and to stabilize the expropriation of the natural resources of countries in the global South. At the same time, counter-hegemonic efforts were made to give international law quite different impacts, especially in Latin American settings. The effort was to put forward international law doctrines to strengthen the sovereign rights of weaker countries, especially in the context of economic relations.

Beyond the law on the books, there are the ambiguities created by state practice, especially with regard to peace and security, given the absence of any central governing authority or legislative institution on a global level to pronounce upon disputes about interpretation or to agree upon changes in governing rules. As a result, many ‘violations’ of international law serve as ‘precedents’ for the establishment of new norms; power generates law, and its interpretation, whether or not it serves the cause of justice. Further, with the veto in the UN Security Council giving the permanent members, and also indirectly their friends, a ‘legal’ right of exception with respect to compliance with international law. Such an interface between power and law offers an additional reason to be skeptical about any present claims of a global rule of law.

Against this background, I find it clarifying to distinguish between positive and negative uses of lawfare. I identify positive uses to be efforts to insist that international law be upheld to the extent that it serves values of peace, justice, and human dignity, and that its guidelines and conceptions of right, be generally treated as authoritative in diplomatic arenas concerned with the peaceful resolution of conflicts or initiatives designed to implement international criminal law, including making use of procedures to impose accountability on leaders of sovereign states. In these positive uses, there is an overall compatibility between lawfare and the pursuit of justice, although to express this conclusion inevitably reflects subjective perceptions and outlook. Other commentators on international law can and do have different views on such matters.

I identify negative uses of lawfare to be efforts to denigrate reliance on the procedures and norms of international law in seeking to pursue rights or hold individuals accountable for violations of international criminal law. The neocons were clear about their refusal to bind the pursuit of American foreign policy goals by shows of respect for international law. Their visions of American grand strategy regarded it as naïve and unhelpful to introduce international law dimensions into policy debates about the use of force. In this vein, thinking mainly about uses of force in defiance of the UN Charter and international law, several prominent neocons, including Douglas Feith and Paul Wolfowitz, showed their contempt of international law as nothing more than ‘a weapon of the weak’ that should not be allowed to alter the behavior of the strong, and in effect, justify the disregard of such legal objections to hegemonic policies as mere tactics of the outgunned side in an asymmetric war.

By way of illustration, the exclusion of international law from the Oslo Framework for resolving the Israel-Palestine conflict was clearly an effective instance of negative lawfare, denying for many years the Palestinians the benefit of claiming their rights by reference to international law. An example along the same lines were the punitive responses made by Israel and the United States to initiatives of the Palestinian Authority to seek statehood within the UN System and then on that basis to become a party to international treaties, including most controversially the Rome Treaty, which facilitates access to the International Criminal Court. The essence of this important example of negative lawfare centers on blocking, retaliating against, and denigrating attempts by political actors to make use of available procedures and legal norms to uphold their rights against those who rely on hard power to sustain oppressive structures. .

Lawfare can operate negatively or positively on any level of social interaction. When activists seek to encourage divestment of holding in companies doing business associated with seeking commercial gain from transactions or projects with unlawful Israeli settlements this is positive lawfare, with unlawfulness serving as an indicator of illegitimate behavior. When such initiatives are blocked by a legal technicality to frustrate efforts to encourage or demand divestment, invoking law becomes negative lawfare. This happened recently at the University of California at Davis. Interestingly, as in this divestment context, what is being called ‘law’ are organizational rules operative with a university setting, and not associated with legal rules generated by governmental institutions.

There is no way to simplify or generalize the role of law in human affairs. Its proper assessment depends on taking into account the structural circumstances (for instance, law as administered by Israel as the occupying power in the West Bank imposes unjust and coercive policies and practices) and on context (for instance, Palestinian reliance on their claims of right based on international law with respect to the right of return of Palestinian refugees, Israeli settlements, status of Jerusalem, control of water). Legal discourse disputes these rights in a variety of ways. Palestinians invoke the authority of the UN General Assembly to vindicate their claims, while Israel claims the authority to put forward its own ideas about insisting that occupied Palestine is a territory of ‘disputed sovereignty’ and as such outside the domain of international humanitarian law.

As long as complex societies exist and actors have their own agendas and priorities, rules and procedures will be manipulated for the benefit of one or

another actor. This inheres in social process. What has happened recently calls for further reflection. Law has been used as an instrument to seek justice and law has been used as a means to gain and secure positions of strategic advantage. ‘Lawfare’ merely makes this tug of war between those that want to invoke international law and those that believes it unduly burdens statecraft

What the Chapel Hill police in North Carolina initially pitched to the world as ‘a parking dispute’ was the deliberate killing of three young and devout Muslim American students by an ideologically driven ‘new atheist’ killer named Craig Stephen Hicks. What the The Economist unhesitatingly calls ‘terrorism in Copenhagen’ involved the attempted shooting of a Danish cartoonist who repeatedly mocks the Prophet and Islamic beliefs as well as the lethal shooting of a Jewish security guard outside a synagogue. A friend understandably poses a serious question on Twitter that might have been dismissed as rhetorical overkill just a few years ago: “Are only Muslims capable of terrorism?”

I find it deeply disturbing that while the Chapel Hill tragedy is given marginal media attention except among groups previously worried about Islamophobia and racism, The Economist considers that important principles of Western liberal democracy are at stake apparently only in the European context. In the words of Zanny Minton Beddoes, the new editor of the magazine: “Jacob Mchangama, a lawyer and founder of a human-rights think-tank called Justitia, told me it would be a disaster if his country were to grow faint-hearted in its defense of free speech. ‘There can be no truce in the struggle between secular democracy and extremism,’ he says. Above all, politicians should avoid the trap of saying or implying that violence was really the fault of provocateurs, or that religious insult was to be equated with physical injury. Giving in to that sort of relativism would be letting down those followers of Islam who were brave enough to stand up for free speech, and indulging in a sort of “bigotry of low expectations”, said Mr Mchangama, whose paternal forebears were Muslims from the Comoros Islands. A good point.”

I am quite sure that this is not a good point, at least as phrased by Mr. Mchangama. Of course, governments should take action to protect all who are violently threatened, but to refuse to regard Islamophobic messaging as a species of hate speech while so regarding anti-Semitiic slurs or Holocaust denial is to combine two things that are both unacceptable: ignoring the root causes of political extremism and pathological violence; and prohibiting and punishing anti-Semitic utterances as hate speech while treating anti-Islamic or Islamophobic speech as requiring protection from the perspective of ‘freedom of expression.’ Admittedly, these outer bondaries are difficult to draw. Should the views of professional historians that cast doubt on the magnitude of the Holocaust be forbidden? Should critical literary and satiric treatments of Mohammed and the Koran be suppressed for the sake of public order? In the former case we have the experience of the French historian, Robert Faurisson, while in the latter case, that of Salman Rushdie. In my view, the writings of both should be regarded as forms of protected speech, and if a government is unable or unwilling to do this, it compromises its own claims to legitimacy. And what it certainly should not do, is defend Rushdie on freedom of expression grounds while punishing Faurisson on the basis of defamation or collective hate laws.

Another trope along a similar trajectory is the push toward acknowledging ‘war’ between the West and Islam, an embrace of the infamous Huntington thesis of ‘the clash of civilizations.’ Roger Cohen, an ethically oriented regular contributor to the opinion page of the New York Times, in a column headlined as “Islam and the West at War” [Feb. 17, 2015] criticizes the Danish prime minister, Helle Thorning-Schmidt, as well as Barack Obama, for describing the adversary as a ‘dark ideology’ and as ‘violent extremists.’ Cohen insists that such terms are euphemisms that evade the central reality of our time, namely, that the West is confronting Islamic movements and governments throughout the world, and even argues that Islam is ‘fair game’ because it “has spawned multifaceted political movements whose goal is power.”

The article also observes that young Muslims feel alienated and are drawn toward ISIS and other radical Islamic movements. Cohen asks the central question “Who or what is to blame?” and then suggests that there are two opposing sets of responses. His descriptions are worth quoting in full: “For the first, it is the West that is to blame through its support for Israel (seen as the latest iteration of Western imperialism in the Levant); its wars (Iraq); its brutality (Gunatanamo, Abu Ghraib); its killings of civilians (drones); its oil-driven hypocrisy (a Jihadi-funding Saudi ally).”

And then comes the second type of response: “… it is rather the abject failure of the Arab world, its blocked societies where dictators face off against political Islam, its repression, its feeble institutions, its sectarianism precluding the practice of participatory citizenship, its wild conspiracy theories, its inability to provide jobs or hope for its youth, that gives the Islamic state its appeal.”

I find several serious flaws in this way of presenting the issue. It should be obvious to any objective commentator that both sets of issues are interwoven, and cannot be separated except for polemical purposes. Furthermore, the failures of the Arab world are presented as detached realities, implying that the Western colonial legacies endured by the Arab world are irrelevant. We need to recall that following World War I, almost one hundred years ago, the European colonial powers effectively insinuated their national ambitions into the diplomatic process that produced the Middle East as we know it today. Such moves undermined Woodrow Wilson’s advocacy of self-determination for the peoples comprising the collapsed Ottoman Empire as well as the promises of a unified country made to enlist Arab support for the war against Germany and the Ottomans.

These historical antecedents certainly contributed to the authoritarianism of the region as the only basis for sustaining a coherent order in the artificial political communities with which the region experienced the transition to political independence. And the sectarianism that Cohen laments was clearly inflamed by American occupation policy in Iraq, as well as providing the most palatable way for Saudi Arabia to justify its hostility to Iran, deflecting attention from corruption and gender cruelty of its dynastic rule.

Overlooking this legacy of colonialism also ignores the effects of the Balfour Declaration, which gave the imperial blessings of British Foreign Office to the Zionist project for Jewish homeland in historic Palestine that were later endorsed by the League of Nation and the UN. It is debatable as to how much of the turmoil and violence in the region is attributable to the open wounds caused by the dispossession and occupation of the Palesinian people, but it is certainly part of the sad regional story that has unfolded in the last several decades.

Not surprisingly, Cohen finds the second series of explanations “more persuasive” and especially so in light of “the failure of the Arab Spring,” which he believe is partly a consequence of Obama’s refusal to do more to promote and sustain democratic outcomes in the Middle East by way of intervention. Somewhat mysteriously he blames the Syrian tragedy on American ‘nonintervention’ without bothering to consider the prolonged national disasters that have followed from such interventions as the sustained ones in Iraq and Afghanistan, or the more limited one under NATO auspices in Libya. In each instance the aftermath of intervention was not democracy, or even stability, but chaos, strife, and a worsening of human security.

Cohen never ventures to suggest that in light of the colonial legacies in the region, abetted by the oil lust of the West, the least bad arrangement at this point that can be fashioned is a less corrupt and more responsible authoritarianism. As deficient as Saddam Hussein and Muamar Qaddafi were from the perspective of human rights and democracy, they did maintain order within their borders and their countries were rated rather highly by the Human Development Indicators (HDI) of the UNDP. If the United States is to be blamed for its diplomacy during the recent past, it would seem much more convincing to hold the Bush Administration responsible for the downward spiral of politics in the region than to point a critical finger at Obama. It was after all during the Bush presidency that an American interventionary resolve was linked to and justified as ‘democracy promotion.’ If we focus on the alienation of Arab youth, it would seem to be much more the result of these military and political interventions than a consequence of the Obama reluctance to engage the United States in yet another war with a Muslim country. Indeed, Obama can be faulted for being too quick to authorize drone and other air strikes, while pursuing an unimaginative diplomacy that remains the best hope for achieving sustainable peace in the region.

Cohen’s diagnosis and allocation of responsibility is a telling expression of the liberal mind-set as it addresses the interlinked agendas of anti-terrorism and Middle East politics. Liberals both minimize Western and American responsibility for what has gone wrong in the spirit of Bernard Lewis and make the partisan United States relationship to Israel seem almost irrelevant to the troubles of the region, thereby overlooking the high costs of the policy. For instance, many knowledgeable observers agree that regional stability would be dramatically enhanced by the establishment of a nuclear weapons free zone in the Middle East. Yet such a policy option was never even considered in diplomatic settings, apparently because it would exert too much pressure on Israel to give up its arsenal of nuclear weaponry, which has given Israel a monopoly on nuclear weapons in the region that insists on preserving at all costs, including risking a disastrous war with Iran.

At this stage there are no easy answers as to allocating responsibility or producing causal explanations for terrible realities being endured by the peoples of the region. Quite clearly there are no good military answers to the various unresolved disasters in the region, although that is where the sort of ‘war thinking’ that Cohen affirms continues to place its bets.

In contrast, I would contend that a more imaginative diplomacy responsive to international law remains the only way forward. Such an orientation would look with favor on Iran’s active participation, especially in relation to Syria and to the possible negotiation of a regional security framework. It would also presuppose the relevance of a just and sustainable resolution of the Israel-Palestine conflict, which it turn depends upon the adoption of a normal approach by the U.S. Government to its relationship to Israel. Until such a reorientation on the part of Washington policymakers occurs, the path of least resistance is to engage in one air war after another, and mindlessly lend aid and comfort to Sisi’s harsh oppression in Egypt and the dismaying blend of autocracy and theocracy in Saudi Arabia.

[Prefatory Note: I am posting an interview conducted by email in recent days with Professor William Schabas in the immediate aftermath of his resignation as Chair and Member of the three person Commission of Inquiry appointed by the UN Human Rights Council last August to investigate allegations of violations of international human rights and international humanitarian law, as well as state crimes associated with Israel’s military attack on Gaza (code named by Israel as Operation Protective Edge) of July-August 2014. The depleted commission now consists of the remaining two members (Mary McGowan Davis of the United States as the newly designated Chair, and Doudou Diène of Senegal) and is due to submit its final report to the HRC in March; Professor Schabas, a distinguished specialist in international criminal law with a worldwide reputation is on the faculty of Middlesex University in London, had participated fully in planning the inquiry, the gathering of evidence, listening to witnesses. His exclusion from the drafting of the report deprives the Commission, and hence the HRC and the international community, of the member with the greatest professional credibility and reputation for no acceptable reason.

As has so often been the case when Israel faces the prospect of criticism it mounts an array of charges of bias directed at both prominent individuals and their institutional sponsors. This was my experience as Special Rapporteur for Occupied Palestine during the entire period of 2008-2014 in which I was subject to continuous defamatory attacks, spearheaded by UN Watch, a notorious NGO that avoids the message while mounting a furious attack on the messenger, seeking to blacken my reputation by writing letters of personal denunciation to a variety of prominent persons, who took such tactics far more seriously than they deserved. Israel officially charged me with bias at the time of my appointment, including issuing a Foreign Ministry declaration of non-cooperation, implemented in December 2008 when I tried to enter Israel on a HRC mission on behalf of the UN and was expelled after being held in a detention cell overnight.

In September 2009 when the Goldstone Report was issued after an inquiry similar to the one that Scshabas was chairing, prompted by the 2008-09 Israeli attack on Gaza (Operation Cast Lead). Richard Goldstone, a prominent liberal figure at the time but also a dedicated Zionist with close personal and professional connections to Israel, was put under pressure from the outset to decline the appointment, and Israel as in this case refused to allow the UN to enter Israel to carry out its fact finding mission in the most efficient manner. Although the Goldstone Report was fair and balanced, it was viciously attacked from the first moment of its presentation as ‘a blood libel’ against the Jewish people, and Goldstone personally was vilified by Israel’s most prominent political leaders, including the Prime Minister and President. This relentless pressure led Goldstone to retract on his own a crucial finding of the report as to the deliberate use of force by the IDF against Palestinian civilians, an action mainly discrediting of Goldstone himself, as the finding of the report continued to enjoy the support of the other three distinguished members of the inquiry group, including by Christine Chinkin of LSE, one of the world’s leading experts on international humanitarian law.

William Schabas’ resignation has its own disturbing specific context, although it bears the imprint of Israel’s determination and skill in mounting campaigns of bias to discredit whoever has had the professional willingness to present unpopular truths concerning allegations of state crimes by Israel arising out of its controversial uses of force in Gaza and overall unlawful occupation administration.As explained in the interview, Schabas was responding to Israeli charges of bias from the outset of his appointment, but with a recent emphasis on the fact that he had some years ago prepared as a modestly paid consultant a short technical report for the Palestinian Liberation Organization on the international law questions associated with a possible Palestinian application for membership in the International Criminal Court. Schabas’ attackers had gained enough traction in recent weeks to induce the President of the HRC to propose referring the question of Schabas’ bias to the UN Legal Affairs Office for resolution. Rather than see the work of the COI diverted and delayed by this side issue, Schabas chose to resign. As is usual in these cases, when a person who stands forth in public for truth and principle as Schabas has done since the beginning, there follows a flow of hate mail and death threats that appear to be the work of pro-Israeli extremists who consider critics of Israel as ‘Jew-haters’ or worse. It is important that those of us who seek a sustainable and just peace for the region stand in solidarity with William Schabas who knowingly stepped into this toxic environment because of his lifelong commitment to strengthening the role of international criminal law in protecting the innocent and punishing the guilty. It is a shameful reality that Israel has been so successful in mounting these campaigns within the United Nations against its more visible critics, and by so doing divert needed attention from its own persistent and flagrant wrongdoing from the perspective of international law. ]

Interview with William Schabas, recently resigned under pressure as Chair of the Commission of Inquiry appointed by the UN Human Rights Council in Geneva to Investigate Allegations of State Crimes associated with Israel’s military attack on Gaza, code named Operation Protective Edge

When you accepted the position of Chair of this Commission of Inquiry into allegations of criminality directed at Israel and Hamas in relation to Israel’s military operations in Gaza during July and August 2014, what were your hopes and worries? Were these borne out by your actual experience?

This was not the first time I have been asked to do something by the High Commissioner for Human Rights. I have never said no when asked. I am a loyal and enthusiastic supporter both of the High Commissioner and of the Human Rights Council. Thus, when initially requested by the High Commissioner if I would agree to have my name submitted as a candidate for the Commission and then by the President of the Human Rights Council if I would agree to be a member of the Commission I did not hesitate. I considered it an honour that both of them thought I could do this challenging job of participating in the Commission. I should add that I was never asked whether I would be the Chairman and only learned that I had been selected for that job when the announcement was made.

This was not the first such Commission. In particular, in a sense it follows in the footsteps of the Goldstone Commission. But there have been other inquiries since Goldstone and a huge amount of work conducted by special procedures of the Human Rights Council and by other UN institutions over the decades. When the most recent Commission of Inquiry was established, I think I believed that we would be a small piece in this much bigger mosaic of initiatives. I hoped the Commission would contribute both to justice and peace but my expectations were modest. On more than one occasion, I said that the difference between this Commission and its predecessors was that this time the International Criminal Court was standing in the wings. The State of Palestine had already begun ratifying international treaties. It acknowledged that accession to the Rome Statute was on its agenda.

How did the work of COI proceed? Were you pleased with the workings of the undertaking as a whole? Do you expect that your resignation will have effects on the conclusions of the report, the reception of its findings, and their likely implementation?

I need to be very careful here because the Commission has not been very public in its activities. It has gathered a huge amount of material. It has also met with many individuals – victims, experts, human rights activists, UN officials, representatives of governments, diplomats – but these ‘hearings’ were not open to the public. Some of those who met with the Commission, in particular a delegation of Israelis that travelled to Geneva in January 2015, publicized their meetings with the Commission. But as a general rule, the identity of those who met with the Commission has not been divulged.

I regret not being able to contribute to the drafting of the report. That job was only beginning at the time of my resignation. I am confident that the professional staff of the Commission, consisting of a dozen specialists, and the two Commissioners will produce a fair and effective report.

Although Netanyahu has called my departure a victory, my own sense is that he has shot himself in the foot or, as they say on this side of the Atlantic, scored an own goal. His strategy seems to be based on the idea that he will be able to prevent the report from appearing. But I think he is very wrong here. Instead of keeping his powder dry, he has fired one of his best pieces of ammunition in order to eliminate me. Now, it is harder for him to attack the Commission and its report.

Can you explain your rationale for resignation more fully? Were you influenced by the experience of Richard Goldstone and the Goldstone Report?

Were you not aware when you were approached that these issues of supposed ‘conflict of interest’ would be used to challenge your credibility in a defamatory manner? Was the decisive factor the unanticipated response of the President of the Human Rights Council to the contention about your consultancy with the PLO on Palestinian statehood?

There had been calls for me to resign from the moment I accepted the mandate in early August 2014. I did not ignore them but I concluded that they were not substantial. I do not think that I was biased or that there was a reasonable apprehension of bias. The allegation about the legal opinion I delivered to the PLO in October 2012 only emerged in late January. It seems the Israeli ambassador raised this informally with the President of the Human Rights Council who then drew it to my attention and asked me to explain, which I did. Subsequently, Israel made a formal complaint. The President proposed that legal advice from the United Nations in New York be requested in order to determine the procedure to follow in examining the complaint. The five-member Bureau of the Council agreed to this. Within minutes of its decision, I submitted my resignation.

I think that when there is an inquiry or investigation into the impartiality of a member of a tribunal or similar body, it is problematic for that body to proceed with other matters until the issue of impartiality is resolved. It was my own assessment that it would be difficult for the Commission to continue to work until my status had been determined. That was likely to take weeks. At best, it would distract the Commission from its important work at a crucial phase. At worst, it would prevent the Commission from completing its report by the March session, as it was required to do. Although I would have preferred to fight and defend myself from the unfair charges of conflict of interest, I considered that I had become an obstacle to the Commission completing its mandate. The least bad solution was for me to get out of the way.

Your question seems to imply that I should have seen all of this coming and extricated myself from the business much earlier. I cannot say I did not consider this in August when I saw how brutal and vicious the attacks on me had become. An important difficulty then was that already one of the three members who had been appointed had taken the step of withdrawing. Amal Clooney had initially been named along with myself and Doudou Diene. It seems there was some kind of misunderstanding. Within a few hours of the announcement of her appointment, she said that she could not serve. For me to withdraw subsequently would, I thought at the time, have been disastrous for the Human Rights Council. Bear in mind that the conflict in Gaza was still raging at the time. I decided that I would tough it out. I did not accept the charges of bias. It is easy today to second guess this. I should add that despite the nasty attacks from predictable directions, there was great support for the Commission of Inquiry. In September, the President of the Council reported to the plenary Human Rights Council. UN Watch and its friends howled about the composition of the Commission but there was no reaction from the members of the Council. In particular, on various occasions the European member states, who had abstained in the resolution establishing the Commission, reassured the three Commissioners of their support for its work and its activities.

In retrospect, do you find any substance to the charges of bias or conflict of interest? How can one be both an expert on this subject-matter and not have some pre-existing opinions? Should not the proper test be one of professionalism and objectivity with respect to the evidence and applicable law? For instance, would a person who had been critical of Nazism or apartheid be rendered unfit to investigate allegations of crimes against humanity or racism?

The word ‘bias’ gets thrown around a lot in this discussion. My attackers constantly claimed that I was ‘biased’. All that they meant was that I had an opinion different from their own. When one talks about bias in the context of judicial independence and impartiality, the issue is not whether the individual in question has opinions that have been expressed in the past. Everyone has opinions. Some conceal them. Others, like myself, wear them on their sleeve. But bias only occurs when an individual charged with a task requiring fairness and impartiality is unable to set his or her opinions aside. There is absolutely no evidence to support such a charge against me on this basis.

Lawyers often talk about ‘perception of bias’ or ‘fear of bias’. This is more subjective. It will occur when someone has a close personal relationship with a litigant or when financial interests are involved. There is reasonable concern that someone placed in such circumstances would have difficulty being impartial. But again, there is nothing of the sort in my situation.

Until the issue of the legal opinion that I provided in 2012 for the PLO arose, the only serious charges against me concerned a couple of statements I had made about Netanyahu. They were presented out of context to suggest that I had some kind of obsession with the man. In one case I was reacting to Netanyahu’s attack on Richard Goldstone. Netanyahu had said that Goldstone was one of the greatest threats to the survival of Israel. I said that I thought Netanyahu was the greatest threat to Israel’s survival. In the other I was talking about double standards at the International Criminal Court. I cited Desmond Tutu, who had criticised the African focus of the Court and said that he wanted to see Tony Blair brought before it. I said that my choice would be Netanyahu. Otherwise, I had not really thought much about the man. I of course stand by what I said. I have never said that I regretted making those remarks. I have never retracted them. I had a right to say them.

Could the UN have found someone who would be qualified to work on a Commission of Inquiry who did not have opinions about Israel and Palestine? Perhaps. Is there a thoughtful, well-informed individual on the planet who does not have an opinion on this?

The Israeli complaint about the legal opinion I had done for the PLO precipitated the chain of events that led to my resignation. Israeli called it a blatant conflict of interest. That is simply wrong. I did the opinion about two years before my appointment. It concerned Palestinian accession to the Rome Statute. I’ve done this for other governments too, helping them to address the legal issues involved in joining the International Criminal Court. I’ll gladly do it for others too, including Israel and the United States, if they ask me. The legal opinion for the PLO was the work of a recognised expert in the field. Although the PLO later acceded to the Rome Statute, it seems it was unimpressed with my legal advice because it did not accede in 2012. But that’s the nature of a legal opinion. Political leaders respond to other imperatives, which is quite understandable. I was not giving the PLO political advice. I was not their advocate or lawyer. I was simply providing a technical service. From beginning to end the whole matter lasted a couple of weeks. I received the request by e-mail and delivered the opinion by e-mail. I was paid a modest amount for my work. This is not a conflict of interest.

I have been struck by the failure of those who have challenged my presence on the Commission to engage with the legal authorities. For example, in 2004 Israel applied to have Judge Elaraby removed from the International Court of Justice in the advisory opinion on the Wall. The application was dismissed almost unanimously by the Court. Judge Elaraby had been a senior diplomat in Egypt and had frequently expressed views about Israel and Palestine. Judge Elaraby had been legal advisor to Egypt for part of his career. He certainly gave legal opinions to Egypt about the conflict over the years.

An Israeli academic friend of mine has drawn my attention to Hersch Lauterpacht, who was a strong supporter of Israel. He even wrote a draft of the declaration of independence, and provided advice to the Zionist movement and the State of Israel at various times. He was elected a judge of the International Court of Justice. Lauterpacht sat in the Israel v. Bulgaria case, which was dismissed at a preliminary stage but with Lauterpacht in dissent. Israel didn’t object that time.

Your reference to a person with views on Nazism is of interest because this was precisely the argument raised by Eichmann against the Israeli judges. There was never any suggestion that the three judges, all of them German Jews, did not have strong views about the Holocaust. It was assumed that they did. How could that not be the case? The Supreme Court of Israel ruled that professional judges would set aside their opinions and judge in an impartial manner.

On the basis of this experience, would you accept future assignments from the HRC or OHCHR? Were you a victim of a campaign of defamation waged by UN Watch, NGO Monitor, etc.?

Of course I will continue to serve the Human Rights Council and the Office of the High Commissioner for Human Rights. These two institutions are central to the international protection of human rights.

The charges of bias against me were nothing more than a witch-hunt, something reminiscent of McCarthyism. Shortly after I was appointed, Rabbi Shmuley Boteach published full-page ads in the New York Times, the Wall Street Journal and the Washington Post attacking my appointment. These were full of vicious lies. They dealt with matters that had nothing whatsoever to do with the mandate of the Commission. For example, I was described as a ‘friend of Iran and its genocidal former President Mahmoud Ahmadinejad’. This is simply a lie. In 2012, I was a member of the Iran Truth Commission that condemned the Iranian regime for gross violations of human rights. In 2011, I accompanied filmmaker Sandra Schulberg to Tehran in order to show her film Nuremberg, Its Lesson for Today. I spoke there about the Holocaust to young Iranians, confronting denialism and anti-Semitism in the lion’s den, so to speak.

Overall, what did you learn from this experience that bears on the role and limitations of the UN? Is the Israel/Palestine conflict a special case? What can be

done to depoliticize the process of such fact finding and policy making undertakings? Did the approach of the Canadian Government of not backing its own citizens play a role in making you more vulnerable to the Israeli pushback?

I think that Israel and Palestine is indeed a special case in UN activity because of the highly politicized context. Fact finding commissions dealing with Syria, Libya and North Korea simply do not confront the hysteria associated with Israel and Palestine. Israel argues that it is a victim of double standards at the Human Rights Council. But it is a beneficiary of double standards at the other Council. This is a nasty, toxic matter. But the job must be done. I hope that those who will be called upon to pursue these issues within the United Nations will not be intimidated by stories of the intense and vicious attacks to which I was subjected, including death threats and unceasing abuse on the internet, much of it quite vile, violent and even racist. The language employed by Israel’s leaders contributes to this terrible atmosphere and, at least indirectly, incites the more fanatical participants. Last week, Foreign Minister Liberman likened me to Cain, a man who murdered his own brother. I must confess to having punched my brothers a few times, when I was much younger, but I have never murdered anyone! The Israeli representative to the UN described me as ‘Dracula’. But such analogies only contribute to the violent tone of the discussions.

Canada’s foreign minister, John Baird, denounced my appointment. I’m a Canadian citizen who has served his country in a variety of ways. I am an Officer in the Order of Canada, one of the country’s highest honours. The current government of Canada is run by a nasty, right-wing bunch who have greatly tarnished the country’s once rather noble position in the field of human rights. Their reactionary positions are well known within the Human Rights Council and, more generally, the United Nations. It would have been an embarrassment if Baird had approved of my appointment.

On balance, how would you compare this COI with that chaired by Goldstone? My impression is that with Goldstone, there was a posture of noncooperation, but no public campaign until the report was issued, and then an ugly multi-level campaign took shape, and led to his partial retraction and total discrediting (especially as he acted without the support of the other three members with whom he apparently did not even consult). How should such COIs be structured in the future? (you may know that my successor as SR had no prior knowledge, and has made the position almost invisible, which may have been the intention).

I wish I had a good answer to your question. It is tempting to say that in the future, the UN should vet appointees in the way that US government officials vet judicial nominees and similar appointments. As you know, there is no shortage of judges in the US who get through congressional approval because they don’t seem to have ever had an opinion about abortion or capital punishment and similar issues. Maybe the UN can identify a similar cohort of human rights experts who have never had opinions on important issues. Given that the nature of human rights work involves participating in various forms of activism, that may prove more difficult than similar exercises in the US judiciary. And it is also likely to eliminate some of the best qualified candidates from the pool.

What I would like to see is more pushback on these wrong and unfair charges of bias and conflict of interest. Some clarification on what is and what is not acceptable would make things clearer. I would like to see some UN guidelines that spell out the fact that the mere fact of having expressed opinions about a situation or a crisis does not disqualify someone from being a member of a Commission of Inquiry or serving in some similar function. It could also be made clear that providing a legal opinion in the past on a matter not directly related to the subject-matter of a commission is not a conflict of interest. The charge of bias seems far too easy to throw around. When it gets before courts, as it did in the International Court of Justice and the Supreme Court of Israel, it doesn’t get much traction, however. Let us get more clarity on this within the UN so that demagogic charges of bias can be knocked out early.

[Prefatory Note: a short interview on how to interpret the ghastly murder of three young Muslims living in the North Carolina university town of Chapel Hill. Should such a grisly event be viewed as a tragic response of a deranged neighbor whose emotions took a violent turn after a dispute over parking in their common residential community or is it better understood as one more indication of the toxic realities associated with the interplay of gun culture and Islamophobia? My responses seek to give reasons for adopting this wider understanding of why such incidents, although horrible on their own, are also bringing death to canaries in the mines of American society. As such the embrace of the movie American Sniper can be seen as another dimension of how ‘the long war’ unleashed after 9/11 to satisfy a range of global ambitions is increasingly casting its dark shadow across the domestic life of the country. We are, indeed, living in a globalizing world where the wrongs done without will be in due course superseded by the wrongs done within. I thank Dan Falcone for his questions that gave me the opportunity to offer these responses.]

Dan Falcone: In light of the recent shooting of Muslims in North Carolina, Russian Television was pondering if the killings would have received a quicker, more widespread and more responsive media reaction had the perpetrator been a Muslim, instead of victims, as seen in this case. My thought is that this question is beyond the hypothetical. What are your thoughts?

Response: I think there is every reason to believe that the identity of the perpetrator influences the media response and approach taken by the public. If the actors are Muslim, whether linked or not to a political network, there is an aura of suspicion surrounding the crimes committed. In contrast, if the perpetrator is white, and Christian, he will be considered a lone actor suffering a severe mental disorder even if he is shown to have links to wider extremist communities as was the case with Timothy McVeigh and Andrew Breivik who engaged in terrorist acts in Oklahoma City (1995) and Norway (2011). The Islamophobic cultural mood predisposes the media and public to incline toward worst case interpretation of Muslim perpetrators and best case scenarios of Christian perpetrators, especially when the victims are Muslim as is the case for the murder of the three young Muslims in North Carolina (Daele Shaddy Barakat, Yusor Mohammed, and Razan Mohammed Abu-Sahla) being partially trivialized as a ‘parking’ dispute among neighbors.

DF: Electronic Intifada and The New Republic reported on the case relative to what they call, “New Atheism,” a social and political secular movement that tends to use classical liberal views to masquerade the advance of reactionary behaviors. Furthermore, when coupled with neo-conservatism, new atheism cherry picks which socio-political groups are targeted in the name of freedom. Do you see this as an attempt in double-speak to intentionally cloud the issue?

Response: There may be an element of insight into some particular cases on this basis, but by and large this kind of discourse obscures the far greater relevance of the Islamophobic atmosphere prevailing in the United States and Europe, and also removes from consideration the linkage between overseas American militarism directed at Muslim societies and recourse to extremist behavior by Muslims. Both the views of the Tsarnaev brothers who exploded the bombs at the Boston Marathon and the Dzhokhar brothers who carried out the recent Charlie Hebdo killings in Paris seemed shaped by the wars in Afghanistan and Iraq, and by the Abu Ghraib pictures confirming the torture and humiliation of Muslim prisoners.

DF: I noticed many educated readers and citizens and the popular press exhausting ways to explain how the killing of Muslims might not be a hate crime, whereas in the coverage of many killings around the world, there seems to be an automatic subtext anticipated in the first hour of reporting: “No word yet if terrorism played a role.” Does this type of thinking remind you of Edward Said’s work in Unveiling Islam?

Response: Yes, definitely. The journalistic tropes used to describe incidents of this sort, especially the initial take when little has been firmly established, are revealing of underlying cultural biases and self-serving governmental ways of processing sensationalist news. To ignore the Muslim identity of the victims, and explain the behavior of the killer as an exaggerated reaction to a dispute over parking is illustrative of this effort to avoid treating Muslim victimization as an expression of ‘hate.’

The insertion of a terrorist possibility is immediate and reflexive if the persons accused are Muslim, and avoided if not even when involving the mass killing of innocent civilians. Why was the Sandy Hook less of a display of a terrorist mind set than that of those who acted in Boston or Oslo?

DF: New atheism seems to suggest that hate crimes are symmetrical and are both color and religiously blind. Given the fact that all three victims had a Palestinian origin or background will this motivate the United States and take say, Israel to discuss the issue with the most minimal amount of complications? And do you think this tragedy provides the Palestinian community a chance to foster additional solidarity?

Response: I do feel that what is being described as the ‘new atheism’ is bound up with the recent popularity in some circles of the secularist idea that most of the evil in our midst can be blamed on religious belief that fuels fanaticism. Authors such as Sam Harris, Christopher Hitchens, and media impresario Bill Maher all feed such views by adopting reductive views of religion that end up associating religious belief with sociopathic extremism. In one respect, such secular thinking is itself fundamentalist in ways that can result in violent behavior on the part of disturbed individuals. It is worth noticing that Craig Stephen Hicks, the North Carolina killer, was self-described as ‘a gun-toting liberal’ (former auto parts dealer now studying to be a paralegal professional) proclaiming his hostile attitudes toward religion on his Facebook page, making the fact that two of the victims wore headscarves possibly an element that heightened his lethal anger to the point of uncontrollable rage. That such a person, whose previous erratic was widely known, should be authorized to possess and wield guns in an intimidating fashion is itself a severe indictment of what ‘the right to bear arms’ has come to mean here in America.

I do not think stressing the links between atheism and extremist violence is helpful as it minimizes attention to the cultural and religious prisms through which political behavior is being predominantly shaped, especially with respect to foreign policy. It is likely that there will be a temporary surge of sympathy with those who share an Islamic identity with these victims, and a realization that such politically and cultural tainted crimes are a serious threat to the moral order of the country, including the maintenance of a sense of political community. I doubt that it will translate in any meaningful way into sympathy for Palestinian victimization, which as far as I have been aware is not given much attention in the mainstream reporting of the incident. It is true that the pro-Palestinian boycott groups associated with the BDS campaign have seized upon these events to indicate their solidarity with the victims of the North Carolina crime, as they did earlier with African American victimization in relation to the recent police killings in Ferguson (Michael Brown) and Staten Island ( Eric Garner).

(Prefatory Note: The post below is a revised and modified version of my chapter in David Held & Kyle McNally, eds., Intervention in the 21st Century [online by Durham, UK: published by Smashwords for Global Policy Journal, 2015]

A Presumption Against Intervention

Participating in the intervention debates that have raged periodically ever since the Vietnam War in the 1960’s, and of course earlier in less contested settings, I have been struck by the defining encounter between those who are dogmatically opposed to intervention per se and those who rarely confront a call for intervention that they do not feel persuaded by, limiting any doubts as to matters of feasibility and strategic interest. The traditional focus of policy discussion proceeds on the assumption that it is about forcible intervention by governmental actors to coerce some kind of change in a foreign sovereign state. Those in favor usually rely, at least in part, on a rationale that such an undertaking is necessary and desirable as it would rescue a captive people from a regime responsible for massive crimes against humanity or genocide, or operate as counter intervention (currently the controversy over intervening in the Ukraine to offset and discourage alleged Russian intervention) or as in relation to ISIS where the stated objective of the American led coalition is to destroy or defeat a non-political actor that is exercising governmental control over territory in portions of Iraq and Syria.

Systemic Developments

Four developments over the course of the last half-century are radically reshaping the debate on the viability and advisability of forcible intervention as a diplomatic option. The first, and most important, is the collapse of European colonialism, which has often motivated the West, and especially the United States, to assert its goalsf and protect their interests by way of intervention in what were formerly colonies or states whose sovereignty was curtailed by hegemonic authority. A feature of this post-colonial global setting is that the intervening state, if Western, will tend to justify its actions by setting forth an altruistic and self-justifying argument with strong moralizing overtones. Related to this matter of motivation on the side of the intervener is the prospect of effective and persevering national resistance creating formidable obstacles to succeeding with an intervention even with the benefit of military dominance. The combination of motivation and anticipated resistance helps explain why so few major interventions have been viewed as successful. One notable continuity linking colonial memories to post-colonial realities is the invariable geographical location of the intervening political actor in the West and that of the target society being in the non-West.

The second development is the rise of human rights as a dimension of world order and a central feature of the foreign policy rationalizations relied upon by liberal democracies, which in a globalizing world makes boundaries seem less inhibiting from the perspective of international law for a prospective intervener. The implicit major premise of the human rights framework is an affirmation of species solidarity. This means that responsibilities for the wellbeing of others extends beyond the boundaries of one’s own state, and reaches to the most remote parts of the planet. In other words, intervention is supposedly undertaken mainly for the sake of securing the rights of others, and territorial ambitions and the quest for economic benefits are denied. The 21st century intervener claims a purity of intentions, but the configuration of interventions and non-interventions is far more ambiguous, and is more convincingly explained by strategic priorities than by the protection of human rights, especially given the cartography of intervention as situating the locus of intervention in the Global South while identifying the intervening political actors as invariably from the West.

The third development is the increased reliance on military technologies that reduce sharply the casualties of the intervener while shifting the burdens of death and devastation to the target society. This reflects thin political support that accompanies subjecting citizens of Western countries to risks of dying, especially for undertakings that are justified as ‘humanitarian’ rather than ‘strategic.’ This discourse of justification places a premium on weaponry and tactics that minimize the likelihood of casualties even at the cost of battlefield effectiveness. The Kosovo intervention under NATO auspices in 1999 was expressive of this new war fighting paradigm, with the military campaign consisting exclusively of air attacks from fairly high altitudes that increased the casualties on the ground but spared the intervening side altogether from experiencing combat deaths or injuries. A similar pattern was present in Libya in 2013 employing NATO airpower to tip the internal balance of forces in favor of an anti-regime uprising without casualties, the new paradigm being dubbed ‘zero casualty wars.’

The fourth development is the acceptance of the validity of a positive international law rule prohibiting forcible intervention by a sovereign state regardless of justifying circumstances. The only exceptions to this prohibition involve a use of force that can be justified as self-defense against a prior armed attack or an intervention that has been authorized by a Security Council decision. Since controversial interventions tend to involve non-defensive or aggressive uses of force that have been neither authorized by UN procedures nor can be convincingly categorized as instances of self-defense as defined in international law. The result of this pattern of ‘lawlessness’ in recent decades has been an erosion of respect for international law and the UN Charter as constraining the behavior of major sovereign states, and especially the United States in relation to the core norm of the UN Charter (Article 2(4)) regarding recourse to force. The authority of international law in these settings has also been undermined by the extent to which the most pronounced forms of conflict are no longer be territorially circumscribed and involving normal sovereign states as principal antagonists. The most important adversaries in the present world order setting are the United States as a global, non-territorial state and various non-state political networks and formations (such as Al Qaeda and affiliates, and Isis and affiliates).

Assessing the Debate

Participants in debates about a prospective intervention are influenced by a variety of considerations that shape their assessments. The pro-interventionists frame their public arguments mainly or exclusively by reference to humanitarian concerns, insisting that when a state severely abuses its own people it inflicts harm on the whole world, and that intervention should follow regardless of its country of origin or its mix of governmental motivations. Ideally, such an intervention should be mandated by the United Nations so as to comply with international law, but if political obstacles prevent such a green light from being obtained, intervention should go ahead anyway if seen as likely to be effective in ending such patterns of severe abuse. Such so-called liberal hawks as Samantha Power, Michael Ignatieff, Susan Rice, and Anne-Marie Slaughter are illustrative North American exponents of interventionary diplomacy, but there are Europeans who take similar positions. One characteristic of the pro-interventionists is their unquestioning good faith in maintaining the claim that interventions are genuinely about helping vulnerable or suffering people, and not about protecting access to oil reserves or ensuring market access. Another feature of such lines of advocacy is its rather blind confidence that if military superiority is brought to bear it can be translated into desired forms of political outcome at acceptable costs in blood and treasure. This confidence in military solutions overlooks the record of repeated failure associated with interventionary diplomacy in the period since 1945, especially in relation to large-scale interventions that generate a strong nationalistic resistance.

The anti-interventionists approach these policy issues differently. They look below the surface of humanitarian rationalizations for the use of force to discern what they believe to be the real motives. They are quick to distrust and dismiss humanitarian explanations for intervention, and search for the presence of strategic interests as revealing the true explanation of a proposed intervention. Most anti-interventionists are extremely suspicious of the justifications given by the pro-interventionists, especially government officials and think tank experts, and skeptical about the claims that positive results will be achieved even if the question of strategic interests is put to one side. Such skeptics, often self-identifying as leftists or progressives, are likely to refer to the failures of past interventions such as Vietnam, or more recently, Iraq and Afghanistan, as cautionary reminders of how often interventions failed from a policy perspective in the period since the end of World War II. They also oppose the tendency of those advocating intervention to ignore the past, seeking to devote their primary attention to questions of feasibility, thereby ignoring the notoriously bad track record of intervention. Since 1945, few of these Western interventions have reached the goals set by their advocates, especially if the target country has a population of over three million and mobilizes a national resistance movement. For anti-interventionists, such as Noam Chomsky, nearly every intervention that is politically endorsed by the West is a poorly disguised example of ‘military humanism,’ and should be viewed as unacceptable. From this perspective, one cost of such interventions is to weaken international law and the UN, as well as respect for sovereign rights. Such a selective use of force imposes the stigma of ‘double standards’ and hypocrisy on the practice of intervention. Chomsky, for instance, asks rhetorically why intervention was undertaken in Kosovo but not on behalf of the large Kurdish minority in Turkey who in the same time period were enduring a cruel counterinsurgency campaign conducted by the Turkish government.

The pro-interventionist tends to stress the moral responsibilities of the United States as a global leader and intervening liberal democracy. In contrast, the anti-interventionist generally dismisses such moral claims as a cover story for the pursuit of strategic interests in a post-colonial world order where the rules of the game are the same, or similar, but the language of justification has changed to make it more acceptable to rely upon ethical rationalizations when seeking to legitimize the use of international force. It is no longer permissible or prudent to admit selfish national motivations, and for this reason a humanitarian and human rights discourse has become fashionable, but it has also obscured the true wellsprings of policy. Anti-interventionists are sometimes so beholden to their suspicions about the maneuvers of the powerful that they can be oblivious to the depth and reality of suffering or the severity of abuse being endured by a people entrapped in genocidal circumstances. Such dogmatic anti-interventionism rejects on principle practical pleas to rescue entrapped and victimized peoples even in situations of genuine emergency. They are so distrustful of authorizing uses of force by those few political actors that possess long distance force projection capabilities and accompanying political will that they refuse to consider the context or weigh the pros and cons of the particular case.

Five Sets of Conclusion

Against such a background of antagonistic views about interventionary diplomacy, I would support several general propositions in seeking to develop an approach that was not ideologically predetermined and sensitive to context, yet overall leans toward the adoption of an anti-interventionist position:

–assess the pros and cons relating to a given situation, including taking due account of the radical uncertainty that arises from unknown and unknowable aspects of the national context and an inability to assess accurately the risks associated with a prospect of national resistance to intervention; such considerations on balance in most situations uphold policies reflective of the presumption against intervention;

–such a presumption can be only overcome by solid evidence suggesting that a true humanitarian emergency exists, that the persons and communities facing a dire threat can be rescued by a proposed scale of intervention that is effective without encroaching upon rights of self-determination, and to the extent possible, that the intervening political actor receives authorization from the UN Security Council;

–in situations of exceptional danger to a civilian population as posed by a genocidal campaign the presumption can be put aside even without UNSC authorization, provided there exists a regional consensus supportive of intervention of the character as existed in the Middle East in reaction to Iraq’s occupation and annexation of Kuwait in 1990 and in Europe in relation to Kosovo in 1999; the quality of the regional consensus is inescapably a matter of interpretation, although formal endorsement of or opposition to a proposed intervention by a constituted regional organization deserves serious respect in the absence of clear signals at the global level from the UN Security Council;

–such a presumption deserves deference if the intervention seems contrary to the wishes of the people engaged in a struggle or if the intervention will tip the internal balance in civil strife contra popular will and the dynamics of self-determination or if it is likely to give rise to proxy wars of regional and global scope as has been the tragic fate of Syria since 2011;

–it may be possible and desirable to support nonviolent initiatives shaped and carried out by civil society actors. In such circumstances, the presumption against intervention should remain in the background, yet relevant to the avoidance of militarizing the conflict. Even then it is important that civil society actors are independent of government influence and not vehicles for an intrusion upon unresolved civil strife. It is also relevant that there exists convincing evidence of a humanitarian crisis and a realization that the territorial government is incapable of acting protectively or is guilty of crimes against humanity; a strong precedent for such intervention from below was exemplified by the global anti-apartheid campaign that exerted major pressures on South Africa in the early 1990; a more controversial example is the BDS (boycott, divestment, and sanctions) movement currently challenging certain Israeli policies and practices involving Israel’s unlawful settlements, continued occupation of Palestine, and overall interference with Palestinian rights under international law.

These five propositions are rough guidelines for reaching a contextual assessment in relation to any debate proposing a specific intervention or civic action aimed at achieving change in a foreign state. By its nature, there is an imprecision associated with such a framework, but it is an alternative to the sort of doctrinaire approach that has been so common in the polarized public debates about intervention during the past 20 years. Relying on these guidelines I opposed the 2003 intervention in Iraq because of the absence of either a Security Council authorization, an existing humanitarian emergency, and the likely prospect of sustained national resistance. In relation to Libya in 2013, I favored a limited humanitarian intervention to protect the civilian population of the city of Benghazi because there was a UN authorization and a genuine humanitarian emergency, but strongly opposed the NATO enlargement of the mandate to encompass a regime-changing mission. Syria has been the most daunting of challenges as there has existed for several years a severe humanitarian emergency, but there is neither a global nor regional consensus supportive of military intervention. Worse than this, the Syria strife has been greatly intensified by become the scene of multiple interventions by political actors from the Middle East and beyond. Additionally, the uncertainty factors depicted in the first guideline have made it impossible to have sufficient confidence that any foreign military intervention in Syria would not intensify the violence and work against achieving a sustainable peace based on inclusive governance respectful of the human right of all inhabitants. The complexities of the dynamics of self-determination makes it often impossible to reach any kind of clarity with respect to proposed initiatives by external actors. It is important to recall that self-determination remains the most significant anti-intervention norm in a post-colonial global setting, and is so often marginalized in debates for or against intervention. This neglect of the relevance of self-determination has often deepened the tragic plight of state-building in the aftermath of political independence.

There have been so many reminders in the past few months that racism remains alive in America that it is worth celebrating an occasion of its transcendence. I am referring to the announcement that Serena Williams,likely to be remembered as the greatest woman tennis player ever, has announced her return to the Indian Wells tournament after a 14 year boycott.Beyond her consummate skill and competitive exploits as a durable champion, I have always found Serena gracious, humble, generous to her opponents, full of fun, and as magnetic off the court as she is domineering and fierce while playing.

The boycott was her reaction to a hostile crowd reaction in Indian Wells back in 2001 when an injury to her sister, Venus, led to her withdrawal from a semifinal match in the tournament when they were scheduled to play one another. Many in the crowd assumed that the cancellation was arranged between the siblings, and shouted racist taunts from the stands during the finals that were directed at her father and then coach, Richard Williams and Venus when they entered the stadium to watch Serena play. Despite the taunting by the crowd, accompanied by racist slurs, Serena nevertheless prevailed in the match. She calls this experience one of the darkest in her long career, remembering the many tears that she shed after it was over, and being reminded at the time of her father’s stories of growing up amid a racist atmosphere in the South. She recollects her feelings with these words: “I suddenly felt unwelcome, alone and afraid.” Her boycott of Indian Wells seemed both self-protective, and in a sense punitive, depriving this high profile tournament of two of its star attractions (as Venus also refused to play).

In a story in the NY Times (Feb 4, 2014) written by Christopher Clarey, Serena explains her decision as partly prompted by a film on the life of Nelson Mandela that taught her the healing benefits of forgiveness. It was this sentiment that she mentions as the basis of the decision, which was enthusiastically welcomed in the most affirming way by those tennis officials associated with the tournament, including its billionaire sponsor, Oracle chief Lawrence Ellison. Of course, a cynic would dismiss this kind of reaction as purely driven by commercial considerations, giving the tournament at Indian Wells to be played in March 2015 greater prestige and commercial success. Undoubtedly these motives were in the mix, but I believe that for mainstream America there has been an important shift away from the sort of racist responses that Serena Williams encountered in 2001. Call it ‘political correctness’ or a change of heart, but I believe it exhibits a deeper cultural appreciation that this form of racism directed at African Americans is no longer ethically, socially, and politically acceptable. Of course, to some extent this brand of racism has been displaced and replaced by a new racist menace, that of Islamophobia.

By returning to Indian Wells Serena Williams has made the double point of at once acknowledging the pain of her past victimization and the healing power of forgiveness. It is one more stage in her remarkable journey that started in the harshness of the racially segregated and impoverished Compton neighborhood Los Angeles. It is a journey that is personally moving for me. My mother was a highly ranked tennis player for fifteen years at a time when African Americans were excluded altogether, and also making me aware of the rigors of training and discipline that such a life of athletic dedication requires. Beyond this, for me tennis (and squash) was my daily therapy for many decades, and the source of several enduring friendships—certainly cheaper, more enjoyable, and even more effective than what most professional therapists have to offer. And so I take this moment to thank Serena Williams for who she is and what she has done for herself, and for all of us, especially for those of us who love the game of tennis.

Richard Falk

Richard Falk is an international law and international relations scholar who taught at Princeton University for forty years. Since 2002 he has lived in Santa Barbara, California, and taught at the local campus of the University of California in Global and International Studies and since 2005 chaired the Board of the Nuclear Age Peace Foundation. He initiated this blog partly in celebration of his 80th birthday.